M/s Automotive Services (Petrol Pump Division) vs THE COSMOS CO OPERATIVE BANK LIMITED on 10 April 2024

JUDGMENT

IN [MISCELLANEOUS APPLICATION No.43/2023] (Delivered on 10.04.2024)

Presented on: 19.05.2023 Registered on: 19.05.2023 Decided on: 10.04.2024 Duration: Y M D 0 10 22

**IN THE DEBTS RECOVERY TRIBUNAL AT PUNE** (Before Shri Dilip G Murumkar, Presiding Officer)

**Miscellanoues Application No.43/2023** **Along with** **Interlocutory Application No.1298/2023**

M/s. Automotive Services (Petrol Pump Division)

A Partnership firm duly registered under the provisions of the Indian Partnership Act, 1932 at present having its office at : Survey No.48/2B/1 and 49/2B/2, Village Tathawade, Taluka Mulshi, District Pune - 411 013.

Through its partner Shri Vilas Gavankar

... Applicant

Versus

1. 1. The Cosmos Co-operative Bank Ltd., A Society duly registered under the provisions of the Multi-State Co-operative Act, 2002 having its registered Office at - Cosmos Tower, Plot No.6, Survey No.132/B, ISC Colony, Ganeshkhind Road, Pune - 411 007.

[KAUR]

1. 2. Liquidator Angha Anasigaraju Liquidator of Pandit Automotive Pvt. Ltd., 1-2, Aishwarya Sankul, Survey No.17, G.A. Kulkarni Road, Kothrud, Pune - 411 038.

2. 3. Pandit Automotive Sangli Pvt. Ltd., A Company duly registered under the provisions of the Companies Act, 2013, having its registered office at - Ashok House, Tilak Road, Shukrawar Peth, Pune - 411 002.

3. 4. M/s. Shah Lagoo Properties LLP. A Limited liability Partnership duly registered as per provisions of the Limited Liability Partnership Act, 2008. Having its registered office at : Poshish Lale Plot, Madhavnagar Road, Sangli - 416 416. Through its partners

1. (a) Mr. Akshya Arun Shah Age : Adult, Occupation: Business

2. (b) Mr. Vikas Hari Lagoo Age : Adult, Occupation: Business

... Defendants

[KAUR]

APPEARANCES

<table><tr><td>For the Applicant</td><td>Mr. P.M. Maindargi - Advocate</td></tr><tr><td>For defendant No.1 bank</td><td>Mr. Vijay V. Chandawale - Advocate</td></tr><tr><td>For defendant No.2</td><td>Mr. Pethe - Advocate</td></tr><tr><td>For defendant No.3</td><td>Mr. Pranav Khadiwale - Advocate</td></tr><tr><td>For defendant No.4</td><td>Mrs. Smita R. Ghodake - Advocate</td></tr></table>

COMMON ORDER (Delivered on 10^th April, 2024)

1. 1. The applicant has filed the Miscellaneous Application to condone the fourteen (14) days delay in filing the Securitisation Application.

2. 2. The averments made in the application can be summarized as under:

The applicant is a Partnership Firm engaged in the business of purchase and sale of petroleum products. The applicant being owner is in actual and physical possession of the suit property i.e. all that piece and parcel of property being City Survey No.13581 (Old Survey No.318/1 to 4, 319/1 + 2, 320 and 321/1 to 3 and plot nos.5 and 6 out of Survey No.322) totally admeasuring about 3226.20 Sq.Mtr and construction standing thereon consists of Basement 987.64 sq.mtrs, free FSI and Ground Floor 1364.84 sq.mtrs [KAUR]

and Mazanin admeasuring about 203.19 sq.mtrs situated at Saraswati Nagar, Taluka Miraj, District Sangli and also situated within the limits of Sangli-Miraj-Kupwad Municipal Corporation. One Mr. Ramchandra Harihar Pandit was owner of suit property and dealer of Hindustan Petroleum who has set up a Petrol Pump in the suit property. He was carrying on the said business under name and style of M/s. Automotive Services. The business was proprietary business and he was the proprietor.

1. 3. Mr. Ramchandra Pandit converted M/s. Automotive Services, a proprietary firm into partnership firm i.e. the present applicant firm vide Partnership Deed dated 1^st July, 1991 and Mr. Pandit has introduced assets and liabilities of proprietary business and his own properties as his capital contribution in the partnership i.e. in the applicant firm. Mr. Pandit has also introduced suit property as his capital contribution in the applicant firm.

1. 4. On 15^th September, 2007 Mr. Ramchandra Pandit died by making his last registered Will dated 24^th April, 1998 and thereby bequeathed his capital and profit sharing in the applicant firm to his three daughters Mrs. Aruna Vilas [KAUR]

Gavankar, Mrs. Shobha Vijay Gokhale and Mrs. Smita Hemant Karve and accordingly Deed of Reconstitution dated 23^rd December, 2008 was prepared. Mr. Pandit also bequeathed the suit property to defendant No.3 Pandit Automotive ~~Sangli~~ Pvt. Ltd., though he had no right as it was already introduced as his capital contribution in applicant firm. Thereafter, partners Mr. Abhijit Deshpande and Mr. Vilas Gavankar retired from partnership firm and vide Deed of Reconstitution dated 8^th October, 2017 Mr. Hemant Karve and Mr. Vilas Gavankar continued the applicant firm and its business along with assets and liabilities.

1. 5. On 29^th February, 2020 the applicant firm came across Sale Notice issued by Bank of Baroda as per provisions of Securitisation Act for sale of property situated at Tathawade, Pune of the applicant firm to which objection by Public Notice was raised by the applicant firm. Thereafter, applicant firm took search of other properties and realized that defendant No.3 Pandit Automotive ~~Sangli~~ Pvt. Ltd., availed loan from defendant No.1 bank by mortgaging the suit property along with other properties [KAUR]

and executed Mortgage Deed dated 18^th September, 2015. Therefore, applicant firm issued Notice dated 10^th June, 2020 and 18^th June, 2020 for cancellation of mortgage and releasing suit property and also issued Public Notice and thereby cautioned public not to deal with the suit property.

1. 6. The applicant firm filed Special Civil Suit No.556/2022 in the Court of Civil Judge Senior Division, Sangli for declaration that impugned Mortgage Deed is not binding upon the applicant firm in which defendant No.1 bank had file application for rejection of plaint on the ground that the suit is barred by Section 34 of the SARFAESI Act. Therefore, Civil Court has rejected the plaint. Therefore, applicant firm challenged that order by filing Civil Appeal No.38/2023 before District Court, Sangli.

2. 7. The defendant No.1 bank applied to Collector Sangli to stop the supply of petrol and diesel to applicant firm to which applicant firm raised objection by letter dated 21^st December, 2020. In the month of May, 2023 the officers of defendant No.1 bank threatened applicant firm that they will take forceful possession of the suit property.

3. 8. On 8^th May, 2023 the applicant firm received information [KAUR]

that defendant bank has illegally sold the suit property to defendant No.4 by private treaty and also issued Sale Certificate dated 23^rd March, 2023 and registered the same on 28^th March, 2023. Therefore, applicant firm has challenged the sale process of suit property by defendant No.1 bank in favour of defendant No.4 M/s. Shah Lagoo Properties LLP by filing Securitisation Application but for filing the same delay of fourteen days caused and therefore, relief of condonation of delay in filing Securitisation Application has been claimed.

9. Simultaneously, the applicant has also filed IA No.1298/2023 claiming following reliefs:

- (a) Pending hearing and final disposal of the present application the defendants especially defendant Nos.1 and 4, its Board of Directors, Managing Committee Members, Partners, designated partners, Administrator, Liquidator, Manager, servant, employee, etc., be restrained to disturb actual and physical possession of the Applicant on the suit property and also to Sale and/or deal with the suit property and create third party interest in the suit property and also change the nature of the suit property.

[KAUR]

(b) Pending hearing and final disposal of the present application the defendants especially defendant Nos.1 and 4, its Board of Directors, Managing Committee Members, Partners, designated partners, Administrator, Liquidator, Manager, servant, employee, etc., be restrained to obstruct the Applicant to carry out its business in the suit property.

1. 10. Defendant No.1 bank, defendant No.2 Liquidator, defendant No.3 Pandit Automotive Sangli Pvt. Ltd., and defendant No.4 M/s. Shah Lagoo Properties LLP by filing Reply (Exhibit-7), (Exhibit-10), (Exhibit-8), (Exhibit-11), (Exhibit-6) and (Exhibit-7A) respectively resisted the application for delay condonation and interim relief.

2. 11. By hearing arguments on both these applications, I hereby dispose them by this common order.

3. 12. The applicant and defendant No.3 have filed Written Notes of Arguments (Exhibit-13) and (Exhibit-13A) respectively.

4. 13. The learned Advocate appearing for the applicant relied upon the following Authorities:

1. (1) *Addanki Narayanappa and another vs. Bhaskara Krishnappa (deceased) and thereafter his heirs and other*

[KAUR]

respondents [AIR 1996 SC 1300]

1. (2) *Purushottam and another Vs. Shivraj Fine Arts Litho Works and others* [(2007) 15 Supreme Court Cases 58].

2. (3) *Prem Raj Brahmin Vs. Bhani Ram Brahmin* [SCC Online Calcutta Series 191]

3. (4) *UCO Bank Vs. Kanji Manji Kothari and Co.* [2008 (3) BomCR 290].

4. (5) *Aniruddh Singh Vs. ICICI Bank Ltd.* [M.P. 5324 of 2023 decided by Hon'ble High Court of Madhya Pradesh at Jabalpur on 3^rd January, 2024].

14. Defendant No.3 relied upon the Judgment passed by Hon'ble High Court of Calcutta in the case of *Akshat Commercial Pvt. Ltd., and another Vs. Kalpana Chakraborty and others* [2010 CJ(Cal) 1121].

15. Perused the record and documents produced by all the parties. The following points arise for my determination and I record my findings thereon as under:

1. (1) Whether applicant firm is entitled to file these applications i.e. Miscellaneous Application and Interlocutory Application?

2. (2) Whether applicant firm prove that there is only [KAUR]

fourteen days delay in filing Securitisation Application and sufficient grounds for condonation of delay?

(3) What order?

16. Findings:

1. Point No.1 – In the negative

2. Point No.2 – In the negative

3. Point No.3 – As per final order

REASONS

As to Point No.1

17. It is the case of the applicant firm that Mr. Ramchandra Pandit was owner of the suit property who was running Petrol Pump therein in the name and style M/s. Automotive Services. Thereafter, vide Partnership Deed dated 1^st July, 1991 Mr. Ramchandra Pandit converted M/s. Automotive Services, a proprietary concern into partnership firm i.e. applicant firm. Mr. Ramchandra Pandit, proprietor of M/s. Automotive Services had introduced the assets and liabilities of proprietary business and his own properties as his capital contribution in the applicant firm. He has also introduced suit property as his [KAUR]

capital contribution in the applicant firm. Therefore, applicant firm became owner of the suit property.

18. However, applicant firm has not produced single document regarding its ownership to the suit property. Title documents are not in the name of applicant firm but they stand in the name of defendant No. ² ₃ Pandit Automotive Sangli Pvt. Ltd. On cursory perusal of Partnership Deed it manifest that partnership firm was established only for running business of Petrol Pump. Partnership Deed is silent that suit property was introduced as capital contribution in the applicant firm by Mr. Ramchandra Pandit, proprietor of M/s. Automotive Services. Had he has intention to introduce suit property as his capital contribution in the applicant firm, name of applicant firm would have mutated in the record of rights after partnership firm was established.

19. It is to be noted that admittedly Mr. Ramchandra Pandit died in the year 2007 and he has bequeathed suit property to defendant No. ² ₃ Pandit Automotive (Sangli) Pvt. Ltd., vide Registered Will dated 24^th April, 1998. Had Mr. Pandit would have introduced suit property as his capital [KAUR]

\* [Correction carried out as per Order passed in RA No. 1/2024 dated 19/12/2025] PO Dpt. Pune contribution in the applicant firm, he would not have bequeathed it to defendant No. ¹3 ² Pandit Automotive ¹Sangli Pvt. Ltd.

20. In view of these observations, prima facie, it appears that applicant firm has no locus to claim reliefs mentioned in both the applications as it cannot be termed as aggrieved party. Therefore, I answer this point in the negative.

**As to Point No.2**

21. At the outset, it is to be noted that Limitation is mixed question of facts and law. According to applicant firm there is delay of only 14 days in filing Securitization Application challenging sale of suit property by defendant No.1 Bank to defendant No.4 M/s. Shah Lagoo Properties LLP whereas according to defendant there is delay of about 5 to 6 years in filing Securitisation Application which is not explained by the applicant firm.

22. Admittedly, Mr. Abhijit Deshpande was one of the partners of applicant firm who retired as partners of applicant firm from 8^th October, 2017 which is seen from Registration Certificate of applicant firm issued by Registrar of Firms produced along with IA No.605/2024. Mr. Abhijit [KAUR]

\* [Correction carried out as per Order passed in RA No. 1/2024 dt. 19/12/2025]

*[Signature]* PO DRT, Pune

Deshpande is also one of the Directors of defendant No.3 Pandit Automotive Sangli Pvt. Ltd. The documents on record and pleadings show that Mr. Abhijit Deshpande was served with Demand Notice dated 27^th July, 2017 issued u/s 13(2) of the SARFAESI Act by defendant No.1 bank and also served with Possession Notice dated 12^th January, 2018. Thus, applicant firm was well aware of the fact that defendant No.1 bank has proceeded under the provisions of SARFAESI Act from July, 2017. But applicant firm without approaching DRT for challenging proceedings initiated by defendant No.1 bank under the SARFAESI Act chosen to issue Notice to defendant No.1 bank challenging mortgage of suit property created by defendant No.3 Pandit Automotive Sangli Pvt. Ltd., with it. The applicant firm by showing professional valour had filed Civil Suit in the year 2022, that too, after period of limitation challenging mortgage in the Civil Court, Sangli. However, plaint has been rejected by Civil Court on taking objection by defendant No.1 bank, one of the defendants in that suit on the ground of lack of jurisdiction. The applicant firm carried that decision upto Supreme Court but defeated.

[KAUR]

[Correction carried out as per Order passed in RANO. 1/2024 dt. 19.12.2025]

DRT Pune

Thereafter, applicant firm filed Securitisation Application challenging only sale process of the suit property along with this delay condonation application.

1. 23. In view of these observations and considering facts of the case, I safely hold that there is no delay of fourteen days in filing Securitisation Application but delay is of considerable long period. Most pertinent is that grounds for causing delay in filing Securitisation Application are silent in the main application. Resultantly, I hold that the applicant firm is not entitled for condonation of delay in filing Securitisation Application. So also not entitled for interim injunction as claimed in the Interlocutory Application.

Therefore, I answer this point in the negative.

**As to Point No.3**

1. 24. The record shows that in the year 2007 Mr. Ramchandra Pandit, proprietor of M/s. Automotive Services had sought permission from Petroleum Companies for closing outlets of petroleum products established in the suit property and property at Satara. At present Petroleum Companies have stopped supplying petrol, diesel and other products in the suit property. So also, electricity connection has been [KAUR]

disconnected. Thus, applicant firm is not doing any business in the suit property.

25. On perusal of documentary evidence, I am of considered view that applicant firm is not entitled for reliefs as claimed in delay condonation application and interlocutory application for temporary injunction. Therefore, both these applications are liable for dismissal.

26. With great regard, I mention that Authorities cited *supra* on behalf of the parties are not helpful to them as proposition laid down in these cases is different than facts of the case in hand.

Therefore, by answering this point accordingly, I pass the following order:

ORDER

A. Miscellaneous Application No.43/2023 is hereby dismissed with costs.

B. IA No.1298/2023 is also hereby dismissed.

Pronounced in open Court.

(Dilip G. Murumkar)

- 10-4-2024

Presiding Officer

Debts Recovery Tribunal, Pune

Place : Pune Date: 10.04.2024

(MA No.43/2023)

[KAUR]

In view of Order passed below Exhibit I in Review Application No. 1/24, corrections in the name of defendant No.3 are carried out in this Judgment, in Para Nos. 18, 19 and 22.

(S. G. Muralikar) Presiding Officer, Debts Recovery Tribunal, Pune. 19.12.25